by Cora-Ann Pestaina, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog
A recent U.S. Court of Appeals decision in Greater Missouri Medical Pro-Care Providers, Inc.ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014), is worth noting as it addressed the issue of how much latitude the DOL has to investigate an H-1B employer’s H-1B documents and records.

As background, an employer seeking to employ a temporary foreign worker in H-1B (also H-1B1 or E-3) nonimmigrant status must, as the first step in the petition process, file a Labor Condition Application (LCA) with the Department of Labor (DOL) and receive certification. The LCA is completed on electronic Form 9035 and submitted through the DOL’s iCERT system. The LCA collects information about the occupation including the occupational title, the number of immigrants sought, the gross wage rate to be paid, the starting and ending dates of employment, the place of employment, and the prevailing wage for the occupation in the area of intended employment. The LCA contains special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent. The employer must also state that its employment of nonimmigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment. An employer is permitted to file the LCA no more than six months before the initial date of intended employment. See 8 U.S.C. § 1182(n)(1)ID); 20 C.F.R. §§ 655.730-733.

Once the LCA is filed, the DOL must approve it within 7 days unless the application is incomplete or obviously inaccurate. 20 C.F.R. §§ 655.740(a)(1)-(2). Within one day of the LCA filing, the employer must maintain a public access file accessible to interested and aggrieved parties. The file must be available at either the principal employer’s place of business or at the employee worksite. 20 C.F.R. § 655.760(a). An aggrieved employee has 12 months after the latest date on which an alleged violation was committed to file a complaint with the DOL Wage and Hour Division (WHD). 20 C.F.R. § 655.806(a)(5).

In Greater Missouri, the employer hired numerous physical and occupational therapists from the Philippines on H-1B status. As required, the employer filed LCA applications for the desired workers. One H-1B employee, a physical therapist from the Philippines, filed a complaint alleging that she had personally paid all the fees, including attorney’s fees, to file and to extend her H-1B status and that the employer failed to pay her during a nonproductive period of over one year when she was reviewing for her licensing exam. The employee also questioned whether the H-1B employer was legally permitted to charge her a fee for “breach of contract” due to her early termination of her employment.

Upon review of the employee’s complaint (forwarded to the DOL by the Missouri state regulators), the DOL treated it as an “aggrieved party” complaint and the DOL investigator concluded that there was “reasonable cause” to investigate the charge that the H-1B employer had attempted to require the employee to pay a penalty for ceasing her employment early. Based only on the determination that this one charge was worth investigating, the DOL investigator launched a full scale investigation and sent a letter to the H-1B employer requesting all of its H-1B documents and records. The DOL investigator also interviewed the aggrieved employee and the employer’s other H-1B workers.

Based on its investigations, the DOL found that the employer improperly failed to pay wages to employees who it had placed in nonproductive status (benched); made improper deductions from employee wages for H-1B petition fees; and required or attempted to require improper penalty payments from some employees for early termination. The employer was ordered to pay over $380,000 in back wages to 45 employees.

The employer fought back by requesting a hearing before an Administrative Law Judge (ALJ).  The employer argued that the applicable statute and regulations limited the DOL’s investigation to the specific issues of the complaint that was filed and only to that aggrieved party’s LCA. The employer also argued that the statute and regulations impose a 12 month time limit for investigating violations. However, the ALJ held that the 12 month time limit only refers to when a complaint can be filed and does not refer to the scope of remedies that can be meted out. The ALJ issued a decision ordering the employer to pay back wages, fees for illegal fee deductions and amounts to employees for illegally withholding paychecks.  When the ALJ failed to hold in the employer’s favor, the employer petitioned for review before the Administrative Review Board (ARB).

The ARB held that the DOL indeed had the authority to investigate alleged violations involving H-1B workers who did not file complaints but also held that violations that occurred outside of the 12 month period prior to the filing of a complaint are not actionable.  However, the ARB affirmed the order for employer to pay awards. The employer took the case up to the District Court which affirmed the ARB’s decision and payment of awards. The employer then appealed to the US Court of Appeals. The DOL did not appeal the District Court’s ruling that violations that occurred outside the 12 month period are not actionable.

In the end, the Court of Appeals held that the DOL’s initial investigatory authority is limited to the complaint that was filed and to those specific allegations and the DOL was not authorized to launch a comprehensive investigation of the employer based only on a single allegation by one employee. The Court of Appeals recognized that additional violations could come to light in the course of the DOL’s investigation of a single complaint and that the DOL may need to modify or expand its investigation based on reasonable cause. However, the Court of Appeals found that this was not how the investigation proceeded in the instant case. The Court of Appeals held that the awards cannot stand because the ARB’s finding of violations and the resulting awards were based entirely on the DOL’s unauthorized investigation of matters other than the allegation in the aggrieved party’s complaint. The US Court of Appeals reversed the judgment of the District Court.

While this was ultimately a victory for the H-1B employer and it is good to note that the DOL does not have sweeping authority to investigate allegations of violations that fall outside of the 12-month statute of limitations, this case is nevertheless a cautionary tale for all H-1B employers. Even a single complaint from one disgruntled employee could lead to a comprehensive investigation of the employer’s H-1B practices. Even though the Court of Appeals in Greater Missouri found that the DOL had overstepped in its initial investigation, the court also pointed out that the DOL may modify its investigation of a single complaint if other violations come to light.   Greater Missouri also highlights the fact that once allegations are made, the employer bears the burden of proof to prove that it has complied with the LCA attestations. Therefore, the importance of excellent record keeping cannot be overstated.

Going into 2016, it would be a good idea for any H-1B employer that is not 100% confident in its LCA records, and its ability to withstand a DOL audit of those records, to conduct a self-audit on behalf of the employer and bring to light any issues that the employer can immediately correct and ensure that it is in compliance. Such a self-audit will give the employer the confidence that it needs should the DOL ever launch an investigation and will help the employer to avoid the potential financial and reputation damage that could come from such an investigation. When it comes to DOL investigations, the proactive approach is always best.

by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

Section 203 of Division O of the recently enacted Consolidated Appropriations Act, 2016, which funds the U.S. government for the remainder of the current 2016 fiscal year (through September 2016), also adds new restrictions on use of the Visa Waiver Program (“VWP”) that exists under section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. §1187.  The title of Section 203 is “RESTRICTION ON USE OF VISA WAIVER PROGRAM FOR ALIENS WHO TRAVEL TO CERTAIN COUNTRIES”, and it appears to have been inspired by reports that the November 2015 terrorist attacks in Paris were carried out by French and Belgian nationals, many of whom had traveled to Syria.  However, the text of the law as enacted goes further than the title.  In particular, the amendments that Section 203 makes to INA 217 apply to certain people who may never have been to any of the countries with which Congress was concerned in enacting the bill, if they are nationals of one of those countries as well as a VWP country.  As this post will explain, this portion of Section 203 could have an unfair and at times truly bizarre impact.

The VWP allows citizens of certain countries designated by the Secretary of Homeland Security (formerly by the Attorney General), in consultation with the Secretary of State, to enter the United States as visitors without the need to apply for a visa at a U.S. consular post abroad.  A list of currently eligible countries is available on the Department of State website and from CBP as well.  VWP entrants are limited to 90-day admissions pursuant to INA §217(a)(1), must waive various rights to contest removal under INA §217(b), and must apply for advance clearance through the Electronic System for Travel Authorization (ESTA) run by U.S. Customs and Border Protection (CBP), but the ability to visit without going through the consular visa application process is still an attractive option for citizens of qualifying countries.

New section 217(b)(12) of the INA, as enacted by section 203 of Division O of the Consolidated Appropriations Act, 2016, adds the following requirements for use of the VWP:

(12) NOT PRESENT IN IRAQ, SYRIA, OR ANY OTHER COUNTRY OR AREA OF CONCERN.--

(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C)--

(i) the alien has not been present, at any time on or after March 1, 2011--

(I) in Iraq or Syria;

(II) in a country that is designated by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or

(III) in any other country or area of concern designated by the Secretary of Homeland Security under subparagraph (D); and

(ii) regardless of whether the alien is a national of a program country, the alien is not a national of--

(I) Iraq or Syria;

(II) a country that is designated, at the time the alien applies for admission, by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or

(III) any other country that is designated, at the time the alien applies for admission, by the Secretary of Homeland Security under subparagraph (D).

(B) CERTAIN MILITARY PERSONNEL AND GOVERNMENT EMPLOYEES.—Subparagraph (A)(i) shall not apply in the case of an alien if the Secretary of Homeland Security determines that the alien was present--

(i) in order to perform military service in the armed forces of a program country; or

(ii) in order to carry out official duties as a full time employee of the government of a program country.

(C) WAIVER.—The Secretary of Homeland Security may waive the application of subparagraph (A) to an alien if the Secretary determines that such a waiver is in the law enforcement or national security interests of the United States.

(D) COUNTRIES OR AREAS OF CONCERN.--

(i) IN GENERAL.—Not later than 60 days after the date of the enactment of this paragraph, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall determine whether the requirement under subparagraph (A) shall apply to any other country or area.

(ii) CRITERIA.—In making a determination under clause (i), the Secretary shall consider--

(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;

(II) whether a foreign terrorist organization has a significant presence in the country or area;
and

(III) whether the country or area is a safe haven for terrorists.

Although INA §217(b)(12)(A)(i), consistent with the title of new INA §217(b)(12), bars use of the VWP only persons who have actually been present in Iraq or Syria or another country of concern, after March 1, 2011, other than as a government employee or military member of a VWP country, new §217(b)(12)(A)(ii) goes significantly further than that.  Quite apart from whether someone was present in Syria, Iraq, or another covered country after March 2011 – or has ever been present there – they will be excluded from use of the VWP if, in addition to being a citizen of a VWP-qualifying country, they are also a national of Iraq, Syria, or another covered country.  The only exception will be if a waiver is granted to a particular person under INA §217(b)(12)(C) on the basis that “such a waiver is in the law enforcement or national security interests of the United States”.

The other covered countries besides Iraq and Syria, pursuant to new INA 217(b)(12)(a)(i)(II)-(III) and (a)(ii)(II)-(III), include those designated as state sponsors of terrorism by the State Department under several named laws, as well as any countries the Secretary of Homeland Security may later designate under §217(b)(12)(D).  The State Department’s list of designated state sponsors of terrorism currently includes Iran, Sudan, and Syria.  Syria is already named in INA §217(b)(12)(a)(i)(I) and (a)(ii)(I), but the other two are not.  So in total, new INA §217(b)(12)(A)(i) currently applies to nationals of Syria, Iraq, Iran, and Sudan.

According to the Refworld web service of the Office of the UN High Commissioner for Refugees (UNHCR), Article 3.A. of the Syrian nationality law provides that in addition to other sources of nationality, “Anyone born inside or outside the country to a Syrian Arab father” has Syrian nationality.  Article 10 of that same law allows a Syrian Arab to forfeit Syrian nationality upon acquiring foreign nationality, but only “provided that a decree has been issued, based on his request and upon recommendation by the Minister [of the Interior], allowing him to abandon his nationality after having fulfilled all his duties and obligations towards the state.”  Thus, it appears that one who is born to a Syrian father, and may never have been to Syria, cannot simply avoid or give up Syrian nationality because he no longer wants it, particularly if he has not “fulfilled all his duties and obligations towards the state.”  It seems likely, particularly in light of the similar Iranian provision discussed below, that this requirement to have fulfilled one’s “duties and obligations towards the state” is a reference, at least in part, to military service obligations.

Iranian nationality law, as reported by Princeton University’s Iran Data Portal, similarly provides for automatic acquisition of nationality through one’s father and does not allow loss of nationality at will.  Article 976, Section 2, of the law bestows Iranian nationality on “Those whose fathers are Iranians, regardless of whether they have been born in Iran or outside of Iran.”  Pursuant to Article 988, Iranian nationality can only be abandoned by those who “have reached the full age of 25”, and then only if “the Council of Ministers has allowed their renunciation of their Iranian nationality”, they have undertaken to transfer all rights they possess or may inherit to land in Iran, and “they have completed their national military service.”  Those born to Iranian fathers who are under 25, have not completed their military service, do not wish to give up land in Iran, or incur the displeasure of the Council of Ministers, are evidently stuck with their Iranian nationality whether they want it or not.

Iraqi nationality law as reported by Refworld is not quite as bad in this regard, but Article 10(I) of that law does require a written renunciation of one’s Iraqi nationality before even one who has acquired a foreign nationality will lose his or her Iraqi nationality.  It is unclear how a child could meaningfully execute such a renunciation, and an adult who becomes a citizen of a Visa Waiver Program country may never have thought to do so, even if he or she had no intention of going back to Iraq and never did.

Sudanese nationality law, as reported by Refworld, makes it easier to give up nationality than in the case of Iran or Syria, but not as easy as in the case of Iraq.  Section 4(1)(b)(i) includes among those who are Sudanese nationals anyone whose “father was born in Sudan.”  Under Section 10(a), the President of Sudan “may decide to revoke Sudanese nationality from” anyone over the age of majority who is proven to have “made a declaration renouncing his Sudanese nationality”, but the President is specifically given the power to “reject such a declaration if it was made during any war which Sudan participated in.” The law does not clarify whether the President can simply “decide” not to revoke nationality from one who has made a declaration of renunciation even absent such a war.

Thus, many citizens of VWP countries who lack any continuing meaningful ties to a country of concern, or never had any such ties, may be affected by the prohibition of INA §217(b)(12)(A)(ii).  Children born to a Syrian, Iraqi, Iranian, or Sudanese father, who are too young to have signed written statements giving up their citizenship, will be barred from the VWP.  Adults who have lived their entire lives in VWP countries, but were born to Syrian or Iranian fathers, and could not give up their citizenship under Syrian or Iranian law because they did not fulfill their military service obligations to Syria or Iran, will be barred from using the VWP.  This is a rather bizarre result, since one doubts that Congress would have wanted to penalize people for not serving in the Syrian or Iranian military, had the issue been thought through.  Perhaps the Secretary of Homeland Security could issue some sort of collective waiver under §217(b)(12)(C), on the basis that it would be in the national security interests of the United States not to encourage service by nationals of VWP countries in the Syrian and Iranian militaries, but that would be a rather cumbersome way to deal with a problem that should not exist in the first place.

Lest this discussion of what one might call involuntary nationality be thought overly academic, it is worth noting that U.S. immigration law does recognize, in at least one other context, the possibility that a person can be penalized for the existence of a nationality which the U.S. government believes them to hold but which they have never sought to use.  In Matter of B-R-, 26 I&N Dec. 119 (BIA 2013), an asylum applicant who had been born in Venezuela, and was a citizen of Venezuela, was denied asylum after the Department of Homeland Security (DHS) “submitted evidence that [he] was a citizen of Spain by birth, because his father was born in Spain and was a citizen of that country.”  26 I&N Dec. at 120.  Since the applicant in Matter of B-R- did not contest on appeal that he was a citizen of Spain as found by the Immigration Judge, and since he had not argued that he had unsuccessfully attempted to avail himself of the protection of Spain, he was held to be ineligible for asylum because he lacked a fear of persecution in Spain.  Matter of B-R-, 26 I&N Dec. at 122  It would seem, under the logic of Matter of B-R-, that INA §217(b)(12)(A)(ii) will apply equally to those who are citizens of Syria, Iraq, Iran, or Sudan solely because of the status of their fathers.

It is true that those barred from the VWP by their Syrian, Iraqi, Iranian or Sudanese dual nationality will not actually be barred from visiting the United States.  Rather, persons barred from the VWP on account of their dual nationality will be able to apply for nonimmigrant B-1 or B-2 (or combined B-1/B-2) visas at a U.S. consular post, just like those who are not citizens of VWP countries.  But to subject citizens of friendly nations to this additional hurdle solely because of their paternity and possibly failure to satisfy obligations to Syria or Iran, as §217(b)(12)(A)(i) in effect does in some cases, is inappropriate.  People who were born in Belgium or France or the UK or some other VWP country and have never left, or have lived in a VWP country for decades and never traveled to a country of concern, should not be precluded from using the VWP because of who their fathers were.

Moreover, because visa waivers are often offered on a basis of reciprocity, INA §217(b)(12)(A)(ii) could have a mirror-image effect on innocent U.S. citizens with the requisite parentage.  European Union regulations, for example, as pointed out by NIAC Action (the sister organization of the National Iranian American Council), already provide for the imposition of visa requirements on citizens of countries who have themselves imposed visa requirements on EU nationals.  So it is possible that the restrictions imposed by U.S. law on citizens of VWP countries who have dual citizenship in a country of concern, and may be unable to get rid of it, could be imposed by EU countries on U.S. citizens who have such dual citizenship.

Before INA §217(b)(12)(A)(ii) and the rest of Section 203 of the Consolidated Appropriations Act became law, AILA warned against hastily enacting its language in the form of what was then H.R. 158 unless the bill were modified and clarified in a variety of respects (including the nationality provision and other aspects such as legitimate travel to the countries of concern by journalists and humanitarian workers and so on).  It is unfortunate that Congress did not heed this warning.  The statute should be amended, whether by this Congress or by a future Congress, so that it does not bar from the VWP nominal citizens of covered countries who have not recently been to those countries.  Other changes to the language produced by the same rushed process that gave us the above-discussed absurd results, although outside the scope of this blog post, may also be warranted.

by Cyrus D. Mehta, ABIL Lawyer
The Insightful Immigration Blog

The USCIS has promised to review the K-1 visa procedures after the San Bernardino attacks since one of the attackers entered on this visa. The K-1 visa is commonly used by a fiancé of a US citizen spouse to enter the United States, and one of the conditions (with some exception) is that the parties must have met within the past two years prior to filing the application. Once the fiancé enters the United States, he or she must get married to the US citizen within 90 days, and then apply for the green card.

While it is unfortunate that a foreign terrorist used the K-1 visa, this does not mean that the K-1 visa should be restricted for all fiancés. The K-1 visa provides the only access for a fiancé to enter the US. While one can enter the United States as a visitor to get married, one cannot also enter with the intention of adjusting to permanent residence status in the United States. Curtailing the K-1 visa will also limit the ability of US citizens to seek foreign spouses. Moreover, the K-1 visa procedure already has in built rigorous screening, and this author has known of delays due to security clearance of K-1 applicants even prior to the California terrorist attacks that left 14 people dead.

As an alternative to the K-1 visa, a US citizen can marry a foreign spouse and directly petition for an immigrant visa. There is only a marginal difference in the time it takes under both the processes.  From the point of view of not waiting to celebrate the marriage, it is quicker. However, in terms of processing time, it takes about the same amount of time for a K1 visa or marriage based I-130 petition to get approved, and the same amount of time for the scheduling of the interview at the US consulate. Once the K-1 visa is issued, the parties have to get married in the United States within 90 days prior to filing the green card application (if they get married after 90 days, the I-130 petition must be filed). Thus, there is an additional extra step before the applicant can receive the green card when compared to a beneficiary of a spousal I-130 visa petition who is admitted into the United States as a permanent residence.

Even if the K-1 visa is not curtailed by Congress (and hopefully that will not be the case), there is bound to be more scrutiny after the shootings. To be eligible for the K-1 visa, it is important that there be no legally valid marriage as the applicant must remain a fiancé. Even religious marriages that are legally recognized as marriages may disqualify the applicant.  The authorities will try to ferret out cases if they discover that the parties got married prior to the issuance of the K-1 visa. In traditional cultures, a marriage is generally preferred, and if an applicant is not permitted to be with the prospective US citizen spouse without a marriage, one should not file the K-1 visa and directly file for a spousal immigrant visa. In fiscal year 2014, only 4 K-1 visas were issued in Saudi Arabia as compared to 7, 228 K-1 visas in the Philippines. Still, even if there is no marriage, the authorities will look more closely after the San Bernardino shootings to see whether this is a bona fide relationship, which is harder to prove when there is no marriage. There will also be more security checks and delays relating to the K-1 visa, although even in the past, delays as a result of security checks were extremely frequent.

The essential point that must be made is that terrorism is separate from immigration. While additional screenings for K-1 visa applicants will be inevitable, they must not in effect nullify the K-1 visa. By the same token, beneficiaries of marriage-based I-130 petitions should also not get excessively delayed as a result of additional scrutiny. Both the K-1 and I-130 procedures take upward of six months, and fiancés as well as spouses from countries with predominant Islamic populations have in any event been impacted since 9/11. It has also been revealed that the shooter who received the K-1 visa also talked openly on social media about violent jihad. Those social media comments were not subject to the security checks that she underwent, and in the future, the authorities are more likely to pry into one’s comments on social media. While comments relating to causing violence should be taken seriously in the visa application process, it is hoped that harmless comments made in the exercise of free speech in opposition to US policy or events, such as feeling disgust about Donald Trump’s statements regarding banning Muslims or criticizing US drone policy, should not be used as a basis to play “gotcha” during the security screening of a visa applicant.

US citizens must be free to marry foreign spouses of their choosing. Imagine if Trump’s desire to ban Muslims from being admitted become reality. Americans will not be able to bring in fiancés or spouses who are Muslims. Note that this has de facto been the case, exemplified in the Supreme Court case of Kerry v. Din, where the plurality of the court upheld the limited power of courts to review adverse consular decisions. In Kerry v. Din, the foreign national spouse in Afghanistan was denied an immigrant visa by citing the terrorism ground of inadmissibility, INA 212(a)(3)(B), without any further explanation.

US immigration law is already very complicated, made further convoluted with security checks since 9/11. There is no need for Congress to curtail the K-1 visa, which in turn will make it harder for Americans to marry foreign spouses abroad. It is hard for an employer to sponsor a foreign national employee for a green card as the employer must certify that it was not able to find an available and willing US worker before being able to sponsor a foreign employee for a green card. The reason for this is that there is a countervailing policy interest in protecting American jobs.  It would be absurd to similarly restrict an American’s ability to marry and sponsor a foreign spouse as a result of countervailing security concerns. One unfortunate misuse of the K-1 visa, which has otherwise worked very well, should not be the reason to make it harder for Americans to marry foreign spouses overseas.

A frisson of fear coursed through me when I learned that U.S. Citizenship and Immigration Services (USCIS) would issue new policy guidance on “job flexibility” — the statutory right of some long-patient green card applicants to change jobs or careers within the same or a similar occupational classification.   Congress introduced this limber possibility in the American Competitiveness in the 21st Century Act (AC21), S.2045 , at a time when the legacy agency, the Immigration and Naturalization Service (INS), still held sway over immigration-benefits decisions.
The better way — APA Notice-and-Comment Rulemaking.  In lieu of USCIS policy guidance, my strong preference would have been that the successor immigration agency pursue notice-and-comment rulemaking under the Administrative Procedure Act (APA). I worried that the more relaxed exercise of issuing draft policy guidance and inviting public comments would become yet another sad episode in the continuing manifestation, particularly in the last ten years, of America’s new form of extra-constitutional government, the Administrative State. Increasingly, the Administrative State — a form of government by bureaucracy “under which [federal] administrative agencies are able to push policy toward their preferences rather than being wholly faithful to their legislative principals” — has become the unwelcome default mode of lawmaking and governance in this era of Congressional impasse.
The Road to Good Intentions. As USCIS forecasted in November 2014 (Item 4 in its list), the forthcoming interpretation would “[p]rovide clarity on adjustment [of status] portability [in order] to remove unnecessary restrictions on natural career progression and general job mobility [and] provide relief to workers facing lengthy adjustment delays.” (Emphasis added.) Despite these soothing words, I foresaw that an admittedly informal “flexibility” practice that had worked reasonably well under a generally relaxed interpretation announced in a series of five agency advisories, e.g., here and here, would ossify in the hands of the current crop of policy formulators at USCIS’s headquarters.  Unfortunately, these fears have come home to roost. As this blog post and comment will show, the November 20, 2015 draft guidance, PM-602-0122, is as stiff and lacking in vitality as a corpse in rigor mortis.
The Pre-AC21 Status Quo. When Congress enacted AC21, it added two provisions promoting “job flexibility” for long-delayed adjustment of status (green card) applicants.  In doing so, the House and Senate tipped their hats to Buddha’s fundamental Law of Impermanence, the precept that, over time, stuff happens. In other words, as William Gladstone, the noted British statesman, reportedly said, “justice delayed is justice denied.”
Congress knew when it passed AC21 that INS decisions on employment-based applications for adjustment of status, the benefit of gaining green card status while in the U.S., were taking far too long.  In a predecessor bill to AC21, the “Immigration Services and Infrastructure Improvements Act of 2000”  (S. 2586), Senator Dianne Feinstein, its lead author, along with several other senators, acknowledged what immigration stakeholders of the era had long known:

Clearly, Congress recognized when including in AC21 a “Title II” (also entitled, the “Immigration Services and Infrastructure Improvements Act of 2000”) that agency processing delays were forcing indentured adjustment applicants to wait years longer than the targeted 180-day period in the new law’s job-portability provisions:

Thus, the 106th Congress that enacted AC21 clearly knew about inordinate green card delays when it provided “job flexibility” relief to beneficiaries whose adjustment of status applications had been “long pending” — meaning those remaining unadjudicated for more than 180 days.  Thus, it allowed a worker (sponsored for a green card in any one of four employment-based immigrant visa preference categories) to change jobs or employers after the adjustment application had been pending more than six months.  The only AC21 condition imposed, however, is that the new position must be in the “same or [a] similar occupational classification” as the one described in the employer’s labor certification application or immigrant visa petition.
Need for a Regulation. Undoubtedly, publishing a proposed USCIS regulation and allowing formal comment from stakeholders before finalizing the rule would be a welcome approach.  To be sure, prior agency guidance left a few lingering ambiguities requiring clarification and did not establish procedures which could and should be formalized in the rulemaking process.  For example, some adjustment applicants probably remained tethered unhappily to Employer #1 because they feared that USCIS might disagree about job similarity and refuse the long-awaited green card.  Moreover, as I proposed in “‘Parting is Such Sweet Sorrow’: Musings on Adjustment of Status Portability” (Musings), Employer #2 gets a windfall, the hiring of an incipient permanent resident already granted open-market authorization pending the adjudication of the adjustment application.  But Employer #2 might still lose if costly training which it provided is wasted or its project engagements are impaired by an adverse USCIS adjudication on the same-or-similar-job issue.  Even worse, Employer #1 — the firm that did the heavy trudging through the red tape and suffered the time required to traverse trap-laden Department of Labor (DOL) and USCIS rules, incurring legal fees and other costs  en route — becomes collateral damage in the war for talent as it loses the services of the the porting worker.
The Equitable Solution — Cell Mitosis. APA rulemaking could thus provide necessary equitable relief to all three deserving parties (the adjustment applicant and Employer #1 on the one hand, and Employer # 2 on the other) by adopting some variant of the “cell mitosis” theory I proposed in Musings.
Just as cells dividing through mitosis inherit cellular DNA, pipeline immigration benefits could likewise be “inherited.”  If mitosis principles were to be applied, the porting employee and Employer #2  would win because their cellular “inheritance” endows green card status, and in an increasingly overheated labor market, the employment of an in-demand worker.  But Employer #2 should not lose everything, given that the DOL’s test of U.S. worker unavailability for the position in question had already been passed.  Instead, Employer #2 could “inherit” (a) the earlier “priority date,” the place in the immigrant visa waiting line, which Employer #1 had reserved for the departing worker, and (b) the right to petition for a comparably qualified non-citizen candidate to fill the same, now-vacant job and to help the new hire and his or her immediate relatives gain green cards through adjustment of status.  Thus, subject to any waiting period in the green-card queue and the same numerical limits of the immigrant visa quota, the porting employee, his or her equally qualified substitute, and Employers #1 and #2, would ultimately gain salutary immigration benefits.  Why? Because they earned them under AC21 and a flexible, job-flexibility final regulation — a rule well within USCIS’s regulatory authority to prescribe.
To those at USCIS or elsewhere who might argue that Employer #2’s “inheritance,” as I’ve described it, would contravene the DOL regulation, 20 CFR § 656.12(a), prohibiting the “offer [of an approved labor certification] for sale, barter or purchase by individuals or entities,” this blogging promoter of applying mitosis principles in the immigration ecosphere would respond that that horse has already left the barn.  In practical effect, AC21’s portability provisions already refute the DOL notion, also espoused in § 656.12(a), that an approved labor certification is not “an article of commerce.” The statutory and commercially-valuable right of adjustment portability effectively permits Employer #2 to “purchase” (though a “same or similar” job offer accepted by the porting worker) the intangible proprietary right to employ the individual as long as s/he has secured the interim adjustment benefit of a USCIS-issued Employment Authorization Card or another form of work permit.
The Need for Transparency. An APA-compliant proposed rule would also make all stakeholder comments publicly accessible on Regulations.gov, and USCIS would be required to elucidate in writing its rationale for accepting some suggestions and eschewing others. This transparency is unlike the current USCIS practice which provides no access to public comments and no explanation of why stakeholder proposals to change draft guidance were accepted or rejected in the final policy.  Regrettably, this behind-the-walls process of willful obscurantism is likely to apply to the finalized USCIS adjustment-portability policy once the comment period for the November 20, 2015 draft guidance (the Draft) expires on January 4, 2016.
What’s Wrong with the USCIS Draft Memorandum? As a partial remedy to the agency’s opaqueness in declining to publish stakeholder comments on job-flexibility, this blog lists several objections and suggest improvements to the Draft:

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President Obama and USCIS deserve praise for their desire to help adjustment applicants change jobs or employers more freely.  Unfortunately, however, the agency’s chosen vehicle of movement — an unduly cramped interpretation of AC21’s job flexibility provisions, coupled with its unwarranted fixation on the SOC — will freeze in place AC21’s intended beneficiaries and thereby impair the virtuous economic goal of enhanced worker mobility.  The USCIS should scrap the Draft and publish a proposed job flexibility regulation.

Charles Kuck, ABIL Past President
Musings on Immigration

The "U" visa program created as part of the Violence Against Woman Act (VAWA) was, and is, a good idea and an effective tool for law enforcement.  As a society, we want people, (including undocumented people) to come forward and report crimes, both as victims and witnesses, in order to bring law enforcement into situations and locations that can assist innocent victims, punish criminals and fight crime.  The "U" visa is available to 10,000 people a year who are harmed as victims, or indirect victims, of typically violent crimes.   Once the "U" visa is issued, the individual is converted to legal status in the United States, and after three years in this status can seek lawful permanent residence (a green card).  That said, the program itself, like every other program that Congress caps with an artificially limited number of visas, has become a shadow of its former self.

In just released Fiscal Year 2015 numbers, USCIS let the public know that more than 110,303 "U" visa applications are pending decision by the USCIS.  There are also 17,694 U visa petitions that were actually approved during Fiscal Year 2015.  The USCIS approves around 80% of the "U" visa applications that it receives (on average).  This means, that if the USCIS receives zero "U" visa applications in Fiscal Year 2016 (which of course is not going to happen), there will be about 100,000 people with approved "U" visa petitions waiting for the 10,000 "U" visa slots that can be actually issued each year.  That means for new applicants in Fiscal Year 2106, there will be at least a 10-12 year wait for issuance of the "U" visa status, with permanent residence at least 13 years away.

That is not the worst of these numbers.  Each year for the last six year we have seen an increasing number of "U" visa petitions filed.  In Fiscal Year 2015, USCIS received 52,666 applications. This number alone is almost a 5 year supply of "U" visas! If this trend continues, at the end of Fiscal Year 2016, there will be a 15 year supply for "U" visa approved petitions, with permanent residence and later citizenship almost a decade beyond that.  Twenty Five years; think about that.

What does USCIS do for approved applicants if there are no "U" visa petitions available to be distributed?  It puts these individuals on "Deferred Action" status, which, technically speaking is not a status.  This status comes without the right to travel at this time (something that a "U" visa status holder has). And, while an approved applicant with "Deferred Action" can receive a work permit, the permit typically must be approved every two years.  It is essentially decades of temporariness with the hope of a resolution that is years away.

So, once again, we have a congressionally created program that started with good intentions, but has ended up in crisis.  Victims of crime are real people.  They come forward seeking law enforcement assistance and seeking justice under our legal system.  Unfortunately, these victims of crime will not receive any timely justice from the immigration system.